Opinion
Civil Case No. 10-cv-03016-REB-MJW
02-28-2012
MARLA D. SNEED, Plaintiff, v. PNC BANK, NATIONAL ASSOCIATION, AMERICAN UNITED MORTGAGE, FIRST COLORADO MORTGAGE CORPORATION, NATIONS BANC, BANK OF AMERICA, RESIDENTIAL ACCEPTANCE NETWORK, NATIONAL CITY MORTGAGE, BANK OF THE WEST, and JOHN AND JANE DOES, Defendants.
Judge Robert E. Blackburn
ORDER ADOPTING RECOMMENDATION OF
THE UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) the Motion of Defendants PNC Bank, National Association, and National City Mortgage To Dismiss Plaintiff's Complaint Pursuant To FED. R. CIV. P. 12(b)(6) [#31] filed March 3, 2011; and (2) the Recommendation on Motion of Defendants PNC Bank, National Association, and National City Mortgage To Dismiss Plaintiff's Complaint Pursuant To FED. R. CIV. P. 12(b)(6) (Docket No. 31) [#48] filed September 7, 2011. The plaintiff filed objections [#55] to the recommendation, and the defendants filed a response [#56] to the objections. I overrule the objections, approve and adopt the recommendation, grant the motion to dismiss, and dismiss this case.
"[#31]" is an example of the convention I use to identify the docket number assigned to a specific paper by the court's case management and electronic case filing system (CM/ECF). I use this convention throughout this order.
As required by 28 U.S.C. § 636(b), I have reviewed de novo all portions of the recommendation to which objections have been filed. I have considered carefully the recommendation, objections, and applicable caselaw.
Because plaintiff is proceeding pro se, I have construed her pleadings and other filings more liberally and held them to a less stringent standard than formal pleadings drafted by lawyers. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007); Andrews v. Heaton, 483 F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d 652 (1972)). However, I have not acted as an advocate for the plaintiff.
The recommendation is detailed and well-reasoned. Contrastingly, the plaintiff's objections are imponderous and without merit.
The plaintiff's complaint concerns a foreclosure on real estate owned by the plaintiff. The plaintiff contends that the foreclosure is not proper because (a) she has not been provided with the original promissory note; (b) the lender did not sign the promissory note; (c) securitization of a loan is illegal; and (d) the promissory note is invalid because it has an adjustable interest rate. In the recommendation [#48], the magistrate judge analyzes correctly each of these issues in the context of the plaintiff's complaint and the issues raised in the briefing on the motion to dismiss. Ultimately, the magistrate judge concludes correctly that the motion to dismiss of defendants, PNC Bank, National Association, and National City Mortgage, should be granted. In addition, the magistrate judge recommends correctly that the claims against the remaining defendants, who have not been served with a summons and the compliant, be dismissed under 28 U.S.C. § 1915(e)(2)(B).
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation on Motion of Defendants PNC Bank, National Association, and National City Mortgage To Dismiss Plaintiff's Complaint Pursuant To FED. R. CIV. P. 12(b)(6) (Docket No. 31) [#48] filed September 7, 2011, is APPROVED and ADOPTED as an order of this court;
2. That the plaintiff's objections [#55] to the recommendation are OVERRULED;
3. That the Motion of Defendants PNC Bank, National Association, and National City Mortgage To Dismiss Plaintiff's Complaint Pursuant To FED. R. CIV. P. 12(b)(6) [#31] filed March 3, 2011, is GRANTED;
4. That under FED. R. CIV. P. 12(b)(6), the plaintiff's claims against defendants, PNC Bank, National Association, and National City Mortgage, are DISMISSED;
5. That under 28 U.S.C. § 1915(e)(2)(B), the plaintiff's claims against all other defendants are DISMISSED;
6. That JUDGMENT SHALL ENTER in favor of the defendants, PNC Bank, National Association, American United Mortgage, First Colorado Mortgage Corporation, Nations Banc, Bank of America, Residential Acceptance Network, National City Mortgage, and Bank of the West;
7. That the defendants are AWARDED their costs, to be taxed by the clerk of the court under Fed. R. Civ. P. 54(d)(1) and D.C.COLO.LCivR 54.1.
Dated February 28, 2012, at Denver, Colorado.
BY THE COURT:
______________________
Robert E. Blackburn
United States District Judge